1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-9-1995

Gov't of VI v Isaac

Precedential or Non-Precedential:

Docket 93-7821

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Recommended Citation

"Gov't of VI v Isaac" (1995). 1995 Decisions. Paper 70.

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 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 93-7821 

 

GOVERNMENT OF THE VIRGIN ISLANDS 

v. 

SAMUEL ISAAC, 

 Appellant

 

On Appeal from the District Court of the Virgin Islands 

(D.C. No. 93-cr-00103) 

Argued December 6, 1994 

Before: SLOVITER, Chief Judge, SCIRICA 

and COWEN, Circuit Judges

(Filed March 9, 1995) 

 

Stephen A. Brusch (Argued) 

Office of Federal Public Defender 

Charlotte Amalie, St. Thomas, USVI 00804-1327 

 Attorney for Appellant 

Kim L. Chisholm (Argued) 

Office of United States Attorney 

Charlotte Amalie, St. Thomas, USVI 00802-6924 

 Attorney for Appellee 
 OPINION OF THE COURT

SLOVITER, Chief Judge. 

 Samuel Isaac appeals his conviction for voluntary 

manslaughter imposed after jury trial in the District Court of 

the Virgin Islands. We will vacate the conviction and remand for 

a new trial because, upon reviewing the evidence presented at 

trial, we conclude that the court erred in refusing to instruct 

on justifiable homicide and offering resistance to prevent 

injury. 

I. 

FACTS

 Defendant Samuel Isaac worked as a helper and 

occasional bartender at the Super Pool Bar and Restaurant in St. 

Thomas. On May 24, 1993 Frederick Barry, also known and commonly 

referred to as Soca, spent several hours at the Super Pool Bar 

where he met his friends Theodore Barzey, Richard Fahie, Julien 

Cline, and Gilbert Smith. During that time Soca bought and drank 

at least three drinks. At trial, Fahie testified that they were 

talking about the "olden days, who could throw down who, and . . 

. who was the strongest." App. at 52. 

 Isaac arrived at the Super Pool Bar for work around 

7:00 p.m. He had come from his day job as a mechanic at an auto 

repair shop. When Isaac arrived, Soca had been there for a few 

hours and, according to Isaac, was arguing loudly. Isaac had 

seen Soca in the bar before. Isaac had never had any trouble 
with Soca in the past, but testified he knew that Soca had a 

general reputation for being a violent person. App. at 259. 

Isaac testified that while he was working he heard Soca say that 

he had a gun and threaten to take out anyone who "messed" with 

him. 

 Eventually a physical altercation broke out between 

Soca and Isaac, leading to Soca's death by stabbing. The events 

leading up to the death were hotly contested at trial. What is 

not in dispute is that Soca received a fatal, two-inch stab wound 

on his right chest, and that Isaac was responsible. There was no 

exterior blood and apparently Soca died from internal bleeding. 

A pathologist called by the prosecution testified that it was 

likely that Soca did not even realize he had been stabbed because 

the alcohol would have deadened his senses. 

 By the time the police arrived at the scene, Soca was 

dead. Isaac immediately identified himself to a police officer 

as the "one involved" in the stabbing and did not try to flee the 

scene. Isaac testified that he must have dropped the knife, but 

it was never recovered. 

 At trial four of the witnesses for the prosecution were 

long-time friends of the deceased. Theodore Barzey, a friend of 

Soca's for over thirty years, testified that he was at the Super 

Pool Bar drinking with Soca and other men on the evening of May 

24th. Barzey testified that he left the Super Pool Bar for 

another club with Fahie. Both men testified that when they left, 
Soca was outside leaning on the porch. Within a few minutes they 

heard bottles breaking and returned to find Soca lying on the 

floor stabbed. 

 Julien Cline, another friend of Soca's, arrived at the 

Super Pool Bar around 8:20 p.m. and noticed that Soca was 

drinking and had "had a little bit too much" although he did not 

believe Soca was causing any trouble in the bar. App. at 68. 

Cline observed Soca going back and forth between the bar and an 

outside balcony and saw Soca talking to a food server at the bar. 

Then Cline saw Soca raise his hand to the bartenders at the bar 

though he could not tell if Soca touched Isaac. Cline testified 

that Isaac pulled down a knife from a high shelf and swung at 

Soca's neck. Cline could not tell whether the knife touched 

Soca. Soca backed up away from the bar, picked up bottles off of 

a table, and threw them at Isaac. At that point Cline fled the 

bar and returned minutes later to find Soca lying on the ground. 

 Much of Cline's testimony at trial directly 

contradicted a statement he gave police immediately after the 

incident in which Cline said that Soca had been "messing" with 

everyone in the bar, that Soca pushed the bartender and said, 

"You want something with me;" and that Soca "reached down to his 

foot, pretending that he was reaching for something." Trial 

Transcript at 131-42. At trial, Cline denied having made these 

statements. The police statement was signed by Cline. 
 Gilbert Smith, a friend of Soca's for over thirty 

years, testified he observed Isaac and Soca come in from the 

balcony and approach the bar. Smith saw Isaac pull down a knife 

from above the bar. Smith said to Soca, "Soka, bring your scunt 

over here. Come sit down. Soka, bring your scunt and come 

over." Then, Smith heard Soca say to Isaac, "You have a knife. 

I will show you what I have" and saw Soca reach down around his 

foot. Trial Transcript at 170. Smith testified "I don't know 

whether it was a gun or what. . . . I see [Isaac] passing with a 

knife across [Soca's] throat . . . [and] that is where Soka was 

getting up from bending down to get what he had." Trial 

Transcript at 170. Isaac tried to get out from behind the bar 

"[a]nd Soka took some dishes . . . [and] went in the cooler and 

was throwing beers at [Isaac]." Trial Transcript at 171-72. At 

that point, Smith fled the bar. Trial Transcript at 173. Smith 

did not know what caused Isaac to pull the knife or if the two 

men had argued on the balcony. 

 Albata Woods, the owner of the Super Pool Bar and a 

cousin of Soca's, was outside the bar at an ice cooler when the 

stabbing occurred. He met Soca in the entrance way and, lifting 

Soca's shirt, found the stab wound. Woods testified that Soca 

had a reputation for violence when he drank and that Isaac had 

never caused any problems in the bar. 

 Charlesworth Richards, the bartender at the Super Pool 

Bar, testified that Soca was loud, intoxicated, and cursing. 
Richards watched Soca hit another bar patron several times in the 

chest. App. at 158. The other patron left the bar and, at that 

point Soca approached the bar, pushed Isaac, and hit Isaac in the 

chest. App. at 160. Isaac walked away from Soca and said "he 

ain't want no trouble." App. at 160. Soca "reached after 

[Isaac] and started beating him," App. at 161, and came around 

the bar and chased Isaac. App. at 163. Isaac tried to run 

outside and Richards himself ran away from the bar. 

 Isaac testified in his own defense. When he arrived at 

the bar Soca was already there arguing loudly with "fight talk." 

Isaac stated that he heard Soca say that he had a gun, that he 

"would take all of you one by one," and, saying on the phone 

that, "I kill two already and one more going to die tonight." 

App. at 240-41. Sometime thereafter he was standing behind the 

bar cleaning dishes when Soca came up to him and said, "You want 

something" and Isaac said "No." Then Soca reached over the 

counter, pushed Isaac, and hit him hard in the chest with the 

back of his hand. App. at 242-43. Isaac told Soca to "behave 

himself," and Soca said, "I don't give a fuck about you." App. 

at 243. Soca started throwing bottles and plates and came around 

the counter making Isaac back up away from the bar. App. at 244. 

 Isaac testified that Soca then reached down at his 

ankle and said "You want to see something? I have something for 

you." App. at 245. Isaac testified that "I reached back with 

the knife, and lunge like that, because he was coming forward. 
And I lunge like that." App. at 245. Isaac testified that he 

picked up the knife "[b]ecause he reach down at the ankle to get 

a gun to shoot me. I was scared. I thought he was going to kill 

me." App. at 245-56. Isaac testified that he never intended to 

kill Soca. App. at 246. 

 Isaac was charged with second degree murder. The court 

gave instructions on self-defense and the lesser included offense 

of voluntary manslaughter but refused the defense's request to 

instruct on excusable homicide, V.I. Code Ann., tit. 14, § 926, 

justifiable homicide in resisting any attempt to commit a felony, 

id. § 927(2)(A) or offering resistance by a party to be injured, 

id. § 41(2). The jury acquitted Isaac of second degree murder 

and found him guilty of voluntary manslaughter. The court 

sentenced Isaac to five years imprisonment. This appeal 

followed. 

 On appeal, Isaac argues three grounds for reversal: 

that the evidence was insufficient to sustain the conviction; 

that the prosecutor's comments on summation denied Isaac his due 

process right to a fair trial; and that the district court erred 

in refusing to instruct the jury on the defenses of excusable 

homicide, justifiable homicide in resisting any attempt to commit 

a felony, and offering resistance by a party to be injured. 
II. 

 DISCUSSION 

A. 

Sufficiency of Evidence

 Isaac claims that the evidence adduced at trial was 

insufficient for a rational jury to find him guilty beyond a 

reasonable doubt of voluntary manslaughter. The standard of 

review for a claim of insufficiency of evidence is whether there 

is substantial evidence, when viewed in the light most favorable 

to the government, to support the jury's verdict. Government of 

the Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir. 1984). 

 To convict Isaac of voluntary manslaughter the 

government must prove 1) that Isaac unlawfully caused Soca's 

death, 2) without malice aforethought, 3) that the killing was 

upon a sudden quarrel or in the heat of passion, and 4) that the 

act was done either with an intent to kill or an intent to 

inflict serious or grievous bodily injury that would likely cause 

or result in death. See V.I. Code. Ann. tit. 14, § 924 (defining 

manslaughter as "the unlawful killing of a human being without 

malice aforethought," "voluntary" is defined as "upon a sudden 

quarrel or heat of passion"); see also Government of the Virgin 

Islands v. Knight, 764 F. Supp. 1042, 1049 (D.V.I. 1991) 

(defining the four essential elements of voluntary manslaughter). 

 Once Isaac properly placed self-defense in issue, the 

government bore the burden of proving beyond a reasonable doubt 
that Isaac did not act in self-defense. See Government of the 

Virgin Islands v. Smith, 949 F.2d 677, 680 (3d Cir. 1991); see

also Government of the Virgin Islands v. Robinson, 29 F.3d 878, 

882 n.3 (3d Cir. 1994). Isaac would be entitled to an acquittal 

on the ground of self-defense if he reasonably believed that he 

was in imminent danger of death or serious bodily harm from which 

he could only save himself by using deadly force. See V.I. Code. 

Ann. tit. 14, § 43. 

 Isaac's argument on the insufficiency of the evidence 

focuses on the contradictory testimony over whether Soca hit 

Isaac first, the many inconsistencies in Cline's and Smith's 

testimony to the police and then at trial, whether Soca 

reasonably appeared to be reaching for a gun, and whether there 

was evidence of an intent to kill or to do grievous harm in light 

of the fact that the stab wound was only two inches. Isaac 

emphasizes the undisputed testimony that Soca could have been 

saved if he had immediately applied pressure to the area and 

gotten medical help, arguing that this negates the requisite 

intent. 

 In reviewing the sufficiency of the evidence, an 

appellate court must ascertain whether the record, when viewed in 

the light most favorable to the government, contains substantial 

evidence to support the jury's verdict. Glasser v. United 

States, 315 U.S. 60, 80 (1942). This evidence must be such that 

a rational trier of fact could find guilt beyond a reasonable 
doubt. United States v. Brown, 3 F.3d 673, 680 (3d Cir.), cert. 

denied, 114 S. Ct. 615 (1993). We will reverse for insufficient 

evidence only where the failure of the prosecution is clear. 

Burks v. United States, 437 U.S. 1, 17 (1978). The evidence need 

not be inconsistent with every conclusion save that of guilt so 

long as the jury can find guilt beyond a reasonable doubt. 

United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). 

 The fact that the testimony is contradictory does not 

mean the evidence is insufficient, only that the jury must make 

credibility determinations. See United States v. Janotti, 673 

F.2d 578, 598 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106 

(1982). Although Richards and Isaac testified that Soca hit 

Isaac first, some of the government's witnesses testified that 

Isaac pulled the knife before Soca threw bottles, that Soca did 

not have a gun, and that Isaac may have swiped at Soca before any 

bottles were thrown. Isaac did testify that he never saw Soca 

with a gun. App. at 266. If the jury credited the testimony of 

the government's witnesses that Isaac pulled the knife before 

Soca reached down to his leg or that Soca never even reached down 

to his leg, it could have inferred an intent to inflict harm from 

Isaac's action of pulling down the knife from the shelf and 

lunging and "flick[ing]" the knife. App. at 254. Even if the 

jury believed Soca was acting loud and perhaps even threatening, 

it could have found that Isaac's response was excessive. Under 

these facts, we cannot hold as a matter of law that the evidence 
was insufficient for a reasonable jury to find beyond a 

reasonable doubt that Isaac did not act in self-defense. 

B. 

Jury Instructions

 We turn next to Isaac's assertion that the district 

court erred when it declined to instruct the jury on excusable 

homicide under V.I. Code Ann., tit. 14, § 926, justifiable 

homicide in resisting any attempt to commit a felony under V.I. 

Code Ann., tit. 14, § 927(2)(A), or offering resistance by a 

person about to be injured under V.I. Code Ann., tit. 14 § 41(2). 

Generally, we review the district court's refusal to give certain 

jury instructions on an abuse of discretion basis. However, 

where, as here, the question is whether the jury instructions 

failed to state the proper legal standard, this court's review is 

plenary. See Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 

1989). In its initial brief filed with us, the government argued 

that there was insufficient evidence to support the elements of 

those defenses. In its supplemental brief, the government argues 

primarily that these other defenses were duplicative of the selfdefense instruction and therefore not required. 

 At Isaac's request, the district court did give the 

jury instructions on self-defense.1 The relevant portion of the 

self-defense charge read: 

 

1. The Virgin Islands code defines self-defense: 

 The right of self-defense does not extend to the 

infliction of more harm than is necessary for the 
 Now, this defendant, Mr. Isaac, contends that he 

acted in self-defense when he stabbed [Soca].2 The law 

of the Virgin Islands says as follows: The right to 

self-defense does not extent [sic] to the infliction of 

more harm than necessary for the purpose of defense. 

To justify a stabbing on the grounds of self-defense, 

there must be not only the belief, but also a 

reasonable ground for believing, that at the time of 

the stabbing Samuel Isaac, the party stabbing [Soca], 

was in imminent or immediate danger of his life or 

great bodily harm. 

 The defense of self-defense is limited to this 

definition and to these circumstances. If you find 

that the defendant was the aggressor at the time of 

stabbing, then self-defense is not available to him and 

you may not consider it. 

 . . . . 

 The issue is whether the defendant acted 

reasonably, and whether his belief was reasonable under 

the facts as you find them to have been at the time, 

not whether the victim actually was about to kill or do 

serious bodily harm to the defendant. 

 In considering whether this defendant used 

excessive force in defending himself, you may consider 

all the circumstances under which he acted. The claim 

of self-defense is not necessarily defeated if greater 

force than would have seemed necessary in cold blood 

was used by the defendant in the heat of passion 

generated by an assault upon him. 

(..continued) 

purpose of defense. To justify a homicide on the 

ground of self-defense, there must be not only the 

belief but also reasonable ground for believing that at 

the time of killing the deceased, the party killing was 

in imminent or immediate danger of his life or great 

bodily harm. 

V.I. Code Ann., tit. 14, § 43. 

2. The district court used the victim's formal name, Frederick 

Barry. Because the witnesses generally referred to Barry as 

Soca, we do so throughout this opinion. 
App. at 400-02. 

 As a general proposition, "a defendant is entitled to 

an instruction as to any recognized defense for which there 

exists evidence sufficient for a reasonable jury to find in his 

favor." Mathews v. United States, 485 U.S. 58, 63 (1988); see 

also Robinson, 29 F.3d at 882; Government of the Virgin Islands 

v. Salem, 456 F.2d 674, 675 (3d Cir. 1972). In Mathews, the 

Supreme Court held that this entitlement to an instruction 

applies even when the defenses are inconsistent, in that case a 

not guilty plea and a claim of entrapment. See 485 U.S. at 62. 

In this case the issue is not that of inconsistent defenses. 

Instead, we must decide first whether, as a matter of law, the 

defenses of excusable homicide, justifiable homicide and 

resistance by a person about to be injured are encompassed in 

self-defense and were therefore covered by the self-defense 

charge. If not, we must decide whether the separate requested 

charges were warranted on the basis of the evidence presented. 

 Each of the defenses for which an instruction was 

sought is covered by a separate section of the Virgin Islands 

Code. Section 926 provides that homicide is excusable 

 (1) when committed by accident and misfortune, or in 

doing any lawful act by lawful means, with usual and 

ordinary caution, and without any unlawful intent; or 

 (2) when committed by accident and misfortune, in the 

heat of passion, upon any sudden and sufficient 

provocation, or upon a sudden combat, when no undue 

advantage is taken, nor any dangerous weapon used, and 

when the killing is not done in a cruel or unusual 

manner. 
 Section 927 defines homicide as justifiable, in 

relevant part, when committed by any person 

 (2)(A) when resisting any attempt to murder any person, 

or to commit a felony, or to do some great bodily 

injury upon any person; [or] 

 . . . 

 (C) when committed in the lawful defense of such 

person, or of a wife or husband, parent, child, master, 

mistress, or servant of such person, when there is 

reasonable ground to apprehend a design to commit a 

felony, or to do some great bodily injury, and imminent 

danger of such design being accomplished; but such 

person, or the person on whose behalf the defense was 

made, if he was the assailant or engaged in mortal 

combat, must really and in good faith have endeavored 

to decline any further struggle before the homicide was 

committed . . . .3 

 

 Section 41(2) states that any person about to be 

injured "may make resistance sufficient to prevent . . . (2) an 

offense against his person." 

 No case that has been called to our attention considers 

the interrelationship between any of these defenses and self-

 

3. Section 927(2)(B), not applicable here, defines justifiable 

homicide: 

 when committed in defense of habitation, 

property, or person, against one who 

manifestly intends or endeavors, by violence 

or surprise to commit a felony, or against 

one who manifestly intends and endeavors, in 

a violent, riotous or tumultuous manner, to 

enter the habitation of another for the 

purpose of offering violence to any person 

therein. 

V.I. Code Ann., tit. 14, § 927(2)(B). 
defense. Nor have we uncovered any informative legislative 

history on that issue. Thus we are faced with four separate 

statutory provisions, each detailing an ostensibly independent 

defense that on its face intersects to some extent with one or 

more of the others. 

 Isaac argues that the defenses are not duplicative of 

self-defense and that each applies in a separate situation. He 

argues that even if a jury was not convinced that a defendant 

reasonably believed s/he was in imminent or immediate danger of 

his or her life or great bodily harm from the victim (the 

elements of self-defense under section 43), it might find that 

the killing occurred through accident and misfortune and without 

defendant's unlawful intent (the elements of excusable homicide 

under section 926(1)) or that the killing occurred on sudden 

combat where no dangerous weapon was used (the elements of 

excusable homicide under section 926(2)). 

 We agree that in light of the statutory definition of 

excusable homicide, it is not duplicative of self-defense. We 

note that recently in Robinson, this court considered an appeal 

by a Virgin Islands defendant charged with first degree murder 

and convicted of voluntary manslaughter who argued that the 

district court erred in refusing to instruct the jury regarding 

self-defense and excusable homicide. 29 F.3d at 879. After 

deciding that the court should have instructed on self-defense, 

we proceeded to consider whether the court should also have 
instructed on excusable homicide. Id. at 885. If an excusable 

homicide defense was encompassed within a self-defense 

instruction, it is likely we would have ended our discussion. 

The fact that we did not leads us to conclude that we regarded 

excusable homicide as separate from self-defense. 

 It is true that in Government of the Virgin Islands v. 

Commissiong, 706 F. Supp. 1172 (D.V.I. 1989), the district court 

held that a rational jury that rejected self-defense could not 

acquit the defendant by finding excusable homicide. Id. at 1189. 

We do not read that holding, even if it were binding on us, to 

suggest that a requested charge of excusable homicide is always 

encompassed in a self-defense charge. Instead, it was a holding 

fact-specific to that case. Nor do we hold today that a 

defendant is entitled as a matter of law to an excusable homicide 

charge irrespective of whether that defendant has sought and 

received a self-defense charge. We merely reject the suggestion 

that an excusable homicide instruction is necessarily encompassed 

within a self-defense instruction. 

 We have held that it is not reversible error for the 

district court to refuse to instruct on excusable homicide if an 

element of that defense is missing. See Government of the Virgin 

Islands v. Knight, 989 F.2d 619, 632-33 (3d Cir.), cert. denied, 

114 S. Ct. 556 (1993). Therefore, the district court's failure 

to instruct on excusable homicide in this case will be upheld if 
there was no basis in the evidence from which a reasonable jury 

could have found that defense. 

 In Knight the defendant intentionally and repeatedly 

hit the victim's head with a loaded .357 magnum pistol. 

The defendant specifically requested the district court not to 

instruct the jury regarding self-defense. Id. at 632 n.7. 

Instead, the defendant contended that the district court should 

have instructed the jury on excusable homicide based on 

defendant's testimony that the victim had grabbed his hand, which 

held the pistol, and squeezed it, causing the gun accidentally to 

discharge. This court rejected the claim of error. After 

parsing the statutory definition of excusable homicide, we found 

that even if the jury believed all of the defendant's testimony, 

there was no evidence that he possessed a lawful intent as 

required by the statute since he admitted that he was 

intentionally assaulting the victim when the gun discharged. Id.

at 632. We rejected the contention that the defendant's intent 

was lawful because he believed he was in danger, noting that it 

was undisputed that the defendant initiated the confrontation. 

We thus concluded, "[n]o evidence supports the conclusion that 

Knight reasonably believed he was in imminent danger of harm when 

he assaulted Miller." Id. at 633.4 

 

4. Isaac argues that self-defense and excusable homicide are not 

the same defense because for self-defense a jury would have to 

find, inter alia, that Isaac's fear of Soca was reasonable, that 

the degree of force he used given the perceived threat was 

reasonable and not excessive, and that he intended to use such 

force to prevent imminent death or great bodily harm, whereas for 
 In Isaac's case, the district court considered both 

prongs of the excusable homicide defense and rejected the need 

for an instruction on either. The court reasoned that subsection 

1 of section 926 (homicide "committed by accident and misfortune 

. . . and without any unlawful intent") was unavailable because 

a jury that believed Isaac was committing a lawful act without 

unlawful intent would find him not guilty under self-defense. We 

need not decide whether the district court's analysis was 

correct. But see Knight, 989 F.2d at 632 n.7 (noting the 

"striking[]" similarity between defendant's argument that his 

intent was lawful because he believed he was in danger and a 

self-defense theory). Instead, we conclude that there was 

insufficient evidence of "accident and misfortune" to justify a 

charge along those lines. Isaac hypothesizes that as Soca was 

coming towards him he could have "accidently [sic] and by 

misfortune lost his balance and fell unto a knife that . . . 

Isaac lawfully had in his hand." Appellant's Supplemental 

Memorandum at 5. There is no evidence that the stab wound was 

inflicted in this manner. Instead, the pathologist testified 

(..continued) 

excusable homicide under V.I. Code Ann. tit. 14, § 926(1) all the 

jury need find was that Isaac stabbed Soca by accident and 

misfortune and had no unlawful intent. To the extent Isaac may 

be suggesting that his intent could have been lawful even if his 

perception of a threat was unreasonable, we note that in Knight

we specifically referred to a defendant's "reasonable" belief. 

Because we conclude that Isaac was not entitled to the excusable 

homicide instruction on other grounds, we need not decide whether 

only a reasonable belief will support a finding of no unlawful 

intent. 
that the wound "went from front to back, and slightly downward." 

App. at 214. The district court is not required to give an 

instruction based merely on speculation. 

 The district court also held that Isaac was not 

entitled to an excusable homicide instruction under subsection 2 

because Isaac had caused Soca's death by use of a "dangerous 

weapon," i.e. a knife. In Robinson this court held that a 

defendant who was convicted of voluntary manslaughter was not 

entitled to an excusable homicide instruction because he had 

struck the victim with a two-by-four plank, which we 

characterized as a "dangerous weapon." 29 F.3d at 885-86. We 

noted that the Virgin Islands definition of excusable homicide 

restates the common law and is similar to excusable homicide 

statutes in other states, such as Florida, California and 

Mississippi. Id. at 885. In those states "dangerous weapon" is 

defined to mean any weapon that will ordinarily produce death or 

serious injury, taking into account the manner in which it is 

used. Our decision in Robinson was filed after Isaac's original 

brief in this case, and in light of that decision he concedes 

that the knife used in this case may also be considered a 

dangerous weapon and he was therefore not entitled to an 

excusable homicide instruction under subsection 2. 

 Turning to justifiable homicide, Isaac claims error in 

the court's refusal to instruct under section 927(2)(A). The 

district court explained merely that a justifiable homicide 
instruction would have been duplicative of and was contained 

within the self-defense instruction. In support of this ruling, 

the government argues that self-defense under section 43 and 

justifiable homicide under section 927(2)(C) are used 

interchangeably by the Virgin Islands courts and do not differ as 

applied to a homicide case. 

 The government cites our decision in Government of the 

Virgin Islands v. Smith, 949 F.2d 677 (3rd Cir. l991), as support 

for the proposition that a trial court in the Virgin Islands is 

not required to give separate instructions on self-defense and 

justifiable homicide. In Smith, we held that it was plain error 

for the district court not to have instructed the jury that it 

was the government's burden of proof to show absence of selfdefense. Id. at 680. In the course of reaching that holding we 

commented that "[k]illing in self-defense is defined as lawful 

and justifiable homicide" and cited both sections 927(2)(C) and 

43. Id. We also cited section 928 which makes acquittal 

mandatory when a homicide is justified. Id. See also Robinson, 

29 F.3d at 882 (defining killing in self-defense as justifiable 

homicide and citing both sections 927(2)(C) and 43). We do not 

read those passing references as dispositive of the issue before 

us. Smith did not consider the need for an instruction on 

justifiable homicide as a statutory defense, since its discussion 

was confined to the need to instruct on the burden of proof as to 

self-defense. 
 To be sure, there is considerable overlap between 

self-defense and justifiable homicide. Both entail a homicide 

committed by the defendant when resisting action by the victim. 

Isaac argues, however, that a plain reading of self-defense under 

section 43 and justifiable homicide under section 927(2)(A) 

demonstrates that they contain different elements. He notes that 

section 927(2)(A) states in the disjunctive that a homicide is 

justifiable if committed by a defendant "when resisting any 

attempt to murder . . ., or to commit a felony, or to do some 

great bodily injury . . . ." (emphasis added). Therefore, he 

concludes that even if the defendant did not have reasonable 

grounds for believing that the victim had put the defendant in 

imminent or immediate danger to his or her life or great bodily 

harm (the elements of self-defense), the jury could find that the 

victim merely may have attempted to commit a different felony, 

such as an assault. 

 Although we do not agree with all of Isaac's suggested 

distinctions between self-defense and justifiable homicide, it is 

clear from the statutory language that some distinctions exist.5 

On the one hand, we attribute to legislative oversight the fact 

that section 927(2)(A) does not expressly require, as does 

 

5. Compare, for example, the explicit requirement in section 43 

that "[t]o justify a homicide on the ground of self-defense, 

there must not be only the belief but also reasonable ground for 

believing that at the time of killing the deceased, the party 

killing was in imminent or immediate danger of his life or great 

harm." 
section 43, that the defendant have had "reasonable ground" for 

believing that s/he was in imminent or immediate danger to be 

relieved from responsibility for the homicide. Nothing but 

oversight could account for the fact that the comparable 

provision in section 927(2)(C) specifies that the defendant is 

relieved from responsibility only "when there is reasonable 

ground to apprehend a design to commit a felony, or to do some 

great bodily injury." Moreover, the comparable California 

justifiable homicide provision has been construed to require 

reasonable belief by the victim of the threat. See People v. 

Ceballos, 526 P.2d 241, 246 (Cal. 1974). We also hold that a 

requirement of reasonable apprehension must be read into section 

927(2)(A). 

 On the other hand, certain differences in the scope of 

self-defense and justifiable homicide in the Virgin Islands Code 

remain. We need note only two differences for this purpose. The 

self-defense provision applies only when a defendant was in 

danger of his or her life or great bodily harm. In contrast, 

sections 927(2)(A) and 927(2)(C) are also available when the 

defendant resisted any attempt or a design "to commit a felony." 

Even if the felony referred to in sections 927(2)(A) and 

927(2)(C) is construed as a violent felony,6 that provision is 

 

6. Although Isaac discusses the "felony" which the defendant can 

be resisting as if it must be an assault, nothing in the 

statutory language confines the "felony" which can justify 

homicide to a violent felony, an issue we do not have to resolve 

under the facts of this case but which only magnifies our concern 

about a broad interpretation of section 927. We note that in 
plainly not as restrictive as is self-defense. The other evident 

difference is that the self-defense provision of section 43 

applies only when the danger is to the party doing the killing 

whereas section 927(2)(A) applies when the danger was to "any 

person" and section 927(2)(C) applies when it was to certain 

specified persons. 

 We can see no reason why the Virgin Islands legislature 

would have broadened the justifiable homicide defense far beyond 

that of self-defense, to the point that some of the limiting 

features of self-defense become nullities when compared with the 

breadth of the justifiable homicide defense. However, in light 

of the clear statutory language we have no alternative but to 

hold that a charge on self-defense is not in itself sufficient to 

meet the district court's obligation to charge on each defense 

requested. Thus, we turn to an examination of the record to see 

if there was a basis for the jury to find justifiable homicide 

under section 927. 

 Isaac argues that even if the jury did not believe that 

he had a reasonable belief that he was in imminent or immediate 

(..continued) 

People v. Ceballos, 526 P.2d 241 (Cal. 1974), the court limited 

the definition of "felony" in California's justifiable homicide 

defense to resistance of "forcible and atrocious crimes," 

following the common law. Id. at 245. See Wharton's Criminal 

Law § 129, at 200 (1994) ("It is justifiable to kill, if 

reasonably necessary, to prevent the commission of a felony by 

violence or surprise. Illustrative of the type of felonies 

included are murder, rape, robbery, burglary and arson."). We 

have previously noted that the Virgin Islands criminal code also 

draws upon the common law. See Robinson, 29 F.3d at 885. 
danger of his life or great bodily harm from Soca so as to 

satisfy section 43 it still could have found that Isaac held the 

reasonable belief that he was resisting an attempt by Soca to 

commit the felony of assault under section 927(2)(A). We agree. 

It is not our function nor that of the district court to make 

credibility determinations. It follows that the court erred in 

declining to instruct the jury on the availability of the 

justifiable homicide defense. 

 Isaac's requested instruction on V.I. Code Ann., tit. 

14, § 41, resistance by a party to be injured (also called 

"lawful violence"), stands in the same position as justifiable 

homicide. However, we have more directly applicable authority 

for a holding as to the independent nature of defenses under 

sections 41 and 43 of the Virgin Islands Code. In Salem, a 

defendant convicted of various assault charges alleged on appeal 

that the district court erred in refusing his request to instruct 

the jury on both self-defense and lawful violence under the 

Virgin Islands Code provisions. 456 F.2d at 675. This court 

agreed, holding that if the jury accepted the defendant's 

testimony that he did not intentionally fire at either of his 

victims and that he made no effort to use his pistol until after 

other shots were fired, both the self-defense and lawful violence 

provisions of the Code would have been relevant to his defense. 

Id. We noted that other witnesses contradicted the defendant's 
version of the shooting, but because there was a basis for the 

requested instruction, it was error not to have given it. Id. 

 In this case, the testimony was sharply conflicting. 

The jury could have believed the testimony of Isaac and Richards 

that Soca punched Isaac before Isaac swung the kitchen knife or 

the testimony of Soca's friends that Soca made no assaultive move 

before the stabbing. It follows that Isaac was entitled to a 

jury instruction on both justifiable homicide and lawful 

resistance to prevent an offense against his person.7 

 

7. Isaac also contends that the prosecutor's summation 

improperly impugned defense counsel and counsel's role at trial 

and inflamed the jury's emotions. The government rejects the 

characterization of the summation as improper and argues that 

even if it were, it was not so extreme as to amount to reversible 

error because of the context of the whole argument, the evidence 

of guilt was otherwise strong, and the court's curative 

instruction removed any prejudice. See United States v. 

Zehrbach, Nos. 93-7477 & 93-7493, 1995 U.S. App. LEXIS 1304, at 

*40 (3d Cir. Jan. 23, 1995) (three-part test for assessing 

prejudice of prosecutorial misconduct). The government also 

urges that its comments were made as an "invited response" to 

defense counsel's style of cross-examination of witnesses and 

comments on summation. The law is clear that a prosecutor must 

not make unfounded and inflammatory attacks on the opposing 

advocate. United States v. Young, 470 U.S. 1, 9 (1985). Because 

of our decision to remand for a new trial, we need not decide 

whether the comments were improper when evaluated in light of the 

closing argument as a whole. See Government of the Virgin 

Islands v. Joseph, 770 F.2d 343, 350 (3d Cir. 1985). We are 

confident that the trial court will not permit any improprieties 

on retrial. 
III. 

 CONCLUSION

 For the reasons set forth, we will vacate the judgment 

of conviction and remand for a new trial. 
Government of the Virgin Islands v. Isaac, No. 93-7821 

SCIRICA, Circuit Judge, concurring. 

 It appears that in this type of case, in which the 

defendant used deadly force in response to an attack or threat by 

the victim, the Virgin Islands statutory scheme on culpability -

- particularly the defense of justification -- renders a nullity 

the limitations contained in the defense of self-defense. 

Nevertheless, I agree that we must follow the statutory language 

and reverse. 

 Evidence that the victim was attempting to commit a 

felony, pursuant to the justification defense, seemingly would 

track the danger to life or great bodily harm requirement of 

self-defense.8 Yet, self-defense requires that the defendant 

reasonably believe he was in "imminent or immediate danger of his 

life or great bodily harm" and that he not use more force than 

 

8. The court's opinion suggests that a jury could find the 

victim here was attempting to commit a felony other than an 

attempt to murder or cause great bodily harm, such as an assault. 

Yet, the definitions of those assaults classified as felonies in 

the Virgin Islands Code bear a striking resemblance to attempts 

to murder or cause great bodily harm. See V.I. Code. Ann. tit. 

14, § 295 (1964) (defining assault in the first degree as 

requiring "intent to commit murder," "intent to kill," or intent 

to commit various other often-violent felonies); id. § 296 

(defining assault in the second degree as attempts to injure by 

poisoning or disfiguring another); id. § 297 (Supp. 1993) 

(defining assault in the third degree as assaults, inter alia, 

with intent to commit a felony, or with a deadly weapon, or by 

means calculated to inflict great bodily harm, or which inflict 

serious bodily injury). 
necessary, V.I. Code Ann. tit. 14, § 43 (1964). Because the 

broader justifiable homicide defense does not so require, id. §§ 

927-28, the limitations on self-defense are left meaningless in 

this type of case. Although such a result seems incongruous, I 

am hesitant to write in these restrictions to the statutory 

definition of justifiable homicide. Instead, I believe these are 

policy decisions properly left to the legislature.9 

 

9. See, e.g., Model Penal Code and Commentaries, art. 3 

(Introduction), at 4 (1985) ("[T]here often was, and in some 

states there still is, internal inconsistency of policy, as when 

limitations on the privilege to kill in self-defense or in 

defense of others are nullified by the breadth of the 

justification recognized for crime prevention."); see also id. § 

3.04, at 34, 37.